GW Law

Earlier this week, I received my first inquiry on the ethics of crowdfunding litigation. It reminded me of a blog I posted in January 2016.

The post is HERE and it’s on, you guessed it, the ethics of crowdfunding litigation. Given the inquiry, I thought I’d revisit the post.

I’m aware that January 2016 isn’t much of a “throwback.” But that’s okay. At GW Law, I was the quarterback on O.P.P., the first law school team to win the “grad school” division of GW’s IM flag football league. We advanced to the Final Four where we were utterly smoked in the semis by the team that won the “staff” division. In any event, back then I wasn’t known for throwing deep; pinpoint accuracy was my thing. So, a throwback of a mere 14 months might not be much of a throw, but the topic is relevant. So, I consider it the equivalent of an 11-yard out that keeps the chains moving.

It’s rare that the filing of an ethics complaint makes the news. However, that’s exactly what happened last week when a group of law professors filed an ethics complaint against Kellyanne Conway. And, I found a way to relate the complaint to Vermont. Bear with me.

The complaint alleges that Ms. Conway violated Rule 8.4(c) of the D.C. Rules of Professional Conduct. The rule states that “[i]t is professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.” By way of summary, the complaint alleges that Ms. Conway violated the rule by:

in an interview with MSNBC, justifying President Trump’s executive order on immigration by referring to the “Bowling Green Massacre” when she knew there was no such massacre; and,

in the same interview, falsely stating that President Obama had “banned” Iraqi refugees for 6 months following the “Bowling Green Massacre”; and,

putting forth “alternative facts” about the size of the crowd at President Trump’s inauguration.

Finally, the complaint alleges that Ms. Conway violated the federal government’s conflict of interest rules by using her position to endorse Ivanka Trump’s products during an interview conducted in the White House briefing room.

Addressing the allegations in reverse order, the New York Times ran this piece on Conway’s endorsement of Ms. Trump’s product line. Fashionista, a sister-site to Above The Law, posted a blog calling the endorsement “pretty illegal.”

The federal government’s internal ethics rules, however, are not my bailiwick. So, back to the allegations that Conway violated Rule 8.4(c).

The National Law Journal suggests that the investigation of the complaint against Conway might take a long time. Regardless of how long it takes to investigate the complaint, at least 2 law professors have voiced strong opinions that it should not result in discipline.

Over at Slate, Steven Lubet, wrote that “[a]s a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent.” His rationale is here.

Jonathan Turley, a law professor at George Washington, wrote that he “fail[s] to see the basis for a formal ethics charge based solely on the product endorsement and view[s] the other references as bordering on frivolous as the foundation for an ethics complaint.” His entire blog entry is here.

Disclosure: I attended GW Law. Professor Turley taught my property law class. As he notes, he also taught Ms. Conway. I did not know her. Professor Turley’s blog indicates that she graduated in 1995. However, a classmate told me that she was a year ahead of us. I graduated in 1993. And, per her Wikipedia page, she graduated in 1992.

Vermont’s Rule 8.4(c) is identical to D.C.’s. Interestingly, in their complaint against Ms. Conway, the professors noted that “[g]enerally speaking, we do not believe that lawyers should face discipline under this Rule for public or private dishonesty or misrepresentation unless the lawyer’s conduct calls into serious question his or her ‘fitness for the practice of law.’ ” (emphasis added).

Why is this “interesting”? Because it’s almost exactly what the Vermont Supreme Court has said. Bear with me some more.

In addition to Rule 8.4(c)’s prohibition of conduct involving dishonesty, fraud, deceit and misrepresentation, Rule 4.1 states that “[i]n the course of representing a client a lawyer shall not make a false statement of material fact or law to a third person.” If a lawyer vioalates Rule 4.1 by making a false statement of material fact, the lawyer must also violate Rule 8.4(c) by engaging in conduct involving dishonesty, deception, and misreprentation, right?

The Vermont Supreme Court has addressed the question. The Court’s decision is here. It appears at 2009 VT 115. The Court stated:

“If Rule 8.4(c) is interpreted to automatically prohibit ‘misrepresentations’ in all circumstances, Rule 4.1 would be entirely superfluous. There must be some meaning for Rule 8.4(c) independent of Rule 4.1 – for we presume that the drafters meant every rule to have some meaning.” (emphasis in the original).

Thus, the Court limited Rule 8.4(c) to misrepresentations that “reflect adversely on a lawyer’s fitness to practice law.”

Sound familiar? It should. It’s exactly what the law professors said in the complaint that they filed against Ms. Conway. And I think I know why they said it.

In reaching its decision that Rule 8.4(c) is limited to misrepresentations that adversely reflect on a lawyer’s fitness to practice, the Vermont Supreme Court cited to, among other sources, an advisory ethics opinion from, that’s right, the District of Columbia.

“Lawyers employed by government agencies who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties”

To their credit, the professors who filed the complaint against Ms. Conway cited to Ethics Opinion 323. However, citing to the ABA Model Rules, the professors stated that they filed the complaint as a result of their belief that “lawyers in public office – Ms. Conway is Counselor to the President – have a higher obligation to avoid conduct involving dishonest [sic], deceit, fraud, deceit or misrepresentation than other lawyers.”

Where am I going with all this? Nowhere. Just thought I’d fill you in on the world’s most famous ethics complaint and its connection, however slight, to Vermont.

Welcome to the final week of the first year of Five for Friday. What a run! People often ask what others say about the quiz. I’ll tell you what: Question 5 has become a monster!

That’s right, more people comment on the regular pop culture question than on the ethics questions. Some people think it’s too hard. Others think I focus too much on “old” movies/songs/tv shows. Still others think I focus too much on new stuff.

Speaking of question 5, parts 1 & 2 of this week’s iteration harken back to my days at GW Law. Which reminds me of Tom Lewis.

I met Tom in September 1990 as 1L. He’s been one of my closest friends ever since. (fortunately, the Character & Fitness Committee never found him.) Tom beat me to the blogging game by about 10 years, starting his own blog to cover the Indiana Pacers in his spare time. It has since been scooped up by SB Nation. I need to find the equivalent scooper upper in the law blog world. In any event, IndyCornrows is Ethical Grounds’ offical source for NBA news.

Stick with me here.

As loyal readers are aware, two things near and dear to my heart are tech competence and basketball. Which leads me to what might be the most technically competent play in the history of basketball.

It’s HERE. Off a jump ball, Draymond Green hit Steph Curry in stride with a full-court pass. Curry caught it in the air and, without landing or looking, lobbed it backwards over his head to Kevin Durant for an alley-oop dunk. For those of you unfamiliar with basketball, Green’s pass traveled approximately 30 yards. In other words, a very long pass in a football game. Not only that, after the ball left Green’s hand but before it hit the ground, two other players caught it, neither of whom was on the ground, and scored a basket. Wuuutttt????

Oddly, the play came in a game in which Klay Thompson scored 60 points. Here’s the legal equivalent: Klay’s 60 is like you watcing a trial and seeing an amazing closing argument that people talk about for days and remember for years. Arguably, one of the top closings of the past decade. Oh, and by the way, earlier in the trial, co-counsel conducted the best cross-eximination in the history of trials. The Green-Curry-Durant play is the cross-examination.

And who was present on press row to witness the game in person? That’s right, Tom Lewis.

To the quiz we go. A few ground rules:

there are no rules. Open book, open search engine, phone/chat/text a friend.

except Question 5. We keep that one honest.

team entries welcome

unless stated otherwise, the Vermont Rules of Professional Conduct control

email answers to michael.kennedy@vermont.gov

I will post the answers on Monday morning

Question 1

My view is that Vermont’s rules prohibit “noisy withdrawal.” What is it that makes “noisy withdrawal” a violation?

A. Lawyer has no grounds to withdraw

B. Lawyer misleads the court as to the reason for withdrawing

C. Lawyer discloses too much information in the process of withdrawing

D. Lawyer allows opposing counsel to communicate directly with Lawyer’s client while the motion to withdraw is pending.

Question 2

Attorney represents Client. Shortly before trial, Attorney discovers a conflict and moves to withdraw. The motion is denied. Despite the conflict, Attorney represents Client at trial. Which is most accurate?

A. Attorney complied with the rules

B. Attorney violated the rules

C. Attorney violatd the rules, but the circumstances mitigate any sanction

D. Lawyer disburses trust funds in reliance upon the deposit of a client’s personal check in the amount of $1500

Question 4

Attorney called with an inquiry. I listened, then asked “it depends. are you holding them in connection with a representation?”

Which rules did Attorney call to discuss?

Question 5

Earlier this week, I presented a CLE for the Windham County Bar Association. (An aside, the CLE preceded the WCBA’s dinner at The Four Columns Inn. If you’ve never eaten there, add it to your bucket list.) Anyhow, the WCBA’s esteemed secretary, L. Raymond Massucco, suggested my topic weeks in advance. I obliged, and the title of my presentation was a common pop culture phrase.

My presentation included 3 parts. Here are the slides I used to introduce each part. From the slides, what was the title of my presentation? (remember – 2 seconds ago I wrote that it’s a common pop culture phrase.)

Update: seems like we need a hint. Each slide represents a different word or words in the pop culture phrase. That is, each slide introduced a different section of the seminar.